Saturday, December 5, 2020
Home Brexit Watch The EU’s bad faith needn’t deprive us of a good deal

The EU’s bad faith needn’t deprive us of a good deal

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AS A retired Higher Courts Solicitor-Advocate (Criminal Law), I shall do my best to enlighten you as to the latest Brexit negotiations and legalities.

Theresa May negotiated with Brussels and allowed them to run rings round her. Boris Johnson took up the baton and, under pressure, accepted a Withdrawal Treaty that was imperfectly negotiated by Government lawyers and had holes in it. Add to the mixture the bad faith of the EU negotiators and we have the present stand-off.

These are the difficulties:

1: The Northern Ireland Protocol of the Withdrawal Treaty raises the risk that there will be barriers to trade between Northern Ireland and Britain. Without a trade agreement, the protocol will apply. In that case, for goods transported from Britain to Northern Ireland, there will be customs controls and checks and further regulatory checks for agri-foods and other products to ensure compliance with EU rules. Even EU tariffs will apply for some goods.

But in the Withdrawal Treaty the EU promised to recognise Northern Ireland’s integral place in the UK’s internal market. It pledged its best endeavours to facilitate the trade between Northern Ireland and other parts of the UK, avoiding controls at the ports and airports of Northern Ireland to the extent possible.

The EU promised to develop ‘in good faith’ agreements giving effect to this relationship, to come into force at the end of 2020. Unfortunately, the EU negotiators have refused to negotiate in good faith and failed to meet their commitments. They have even threatened to refuse to list Britain as a country from which they can accept food imports. This is despite Britain already complying with all relevant EU laws and promising to notify the EU of any changes in its regulations, in common with other countries approved for food imports by the EU.

Refusing to list Britain would mean a food blockade between Northern Ireland and Britain, which would be a clear breach of the EU’s commitments in the Withdrawal Treaty.

2: Britain does not wish to be governed by EU state aid regulations. Under the Northern Ireland protocol, the UK must notify the EU of any subsidies that could affect trade between Northern Ireland and the EU single market.

Brexiteers believe that ambiguity in the protocol could be exploited by the EU to interfere with subsidies for businesses in Britain which have only a limited link to Northern Ireland. The Government intends to address this by making clear that EU state aid rules apply only to Northern Ireland.

3: Another issue is the requirement that Northern Ireland businesses must complete export summary declarations when they send goods to Britain. This is incompatible with the promise that the province will enjoy unfettered access to the UK internal market. The government will legislate to waive this requirement.

4: Another issue is ‘at risk’ goods heading into Northern Ireland from Britain, which could enter the single market (via the Irish Republic) and must be subject to tariffs.

Goods shown to have been consumed in Northern Ireland can have the tariff rebated, but this will be an administrative nightmare adding to costs. The Government will hand ministers the power to determine the goods ‘at risk’.

5: On January 9, 2020, the European Union (Withdrawal Agreement) Act 2020 was passed. It contained Section 38, which says that nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom. The 27 member states agreed to the terms of the Withdrawal Act as it was given Royal Assent on January 23.

The EU has used Northern Ireland for strategic and tactical reasons in the negotiations to demand that Britain remains in the Common Fisheries Policy. The EU wants to turn the screw until the Government relents in its pursuit of independence and sovereignty.

Given the failure of the EU to negotiate in good faith and its threats to Northern Ireland, the Prime Minister can legitimately argue that Britain is not breaching its commitments in international law, but the EU is.

Brussels is also undermining the Good Friday Agreement, which guarantees that Northern Ireland’s constitutional status cannot be changed without its people’s consent. If there is no deal, the Government will legislate in the Internal Market Bill and a future Finance Bill to disapply parts of the Northern Ireland protocol.

And so the EU leaders can either negotiate in good faith and conclude the trade agreement they once said they wanted. Or they can accept a no-deal outcome, in which the UK will defend its territorial integrity.

The Internal Market Bill must be supported by Parliament. It readies the country for Brexit and makes a good deal more likely.

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John Hayter
John Hayter is a retired Higher Courts Solicitor-Advocate (Criminal Law).

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